R v Cordell; R v Petersen
[2014] NSWDC 74
•21 February 2014
District Court
New South Wales
Medium Neutral Citation: R v Cordell; R v Petersen [2014] NSWDC 74 Decision date: 21 February 2014 Before: Cogswell SC DCJ Decision: Petersen: for four offences - assault occasioning actual bodily harm in company x 2; detain with intent to steal property in company; use offensive weapon to commit an act of indecency - aggregate sentence of 9 years imprisonment, non-parole period 4½ years.
Cordell: for two offences - assault occasioning actual bodily harm in company; detain with intent to steal property in company - aggregate sentence of 2 years imprisonment suspended.
Catchwords: CRIMINAL LAW - Particular offences - offences against the person during home invasion - Sentence - relevant factors - Petersen - greater criminality than co-offender - on conditional liberty - prior conviction for serious personal violence - response to charges - guilty plea - 12% discount - remorseful - nature and circumstances of offender - Aboriginality - young age - rehabilitative courses and work in prison - supportive family - Form 1 taken into account - Cordell - joint criminal enterprise - significantly lower criminality than co-offender - nature and circumstances of offender - adverse childhood, learning difficulties, long history substance abuse - strong work ethic - purpose of sentence - rehabilitation - demonstrated extraordinary commitment to rehabilitation - reached advanced stage of Odyssey House program - 2 years quasi custody. Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) s 14
Crimes Act 1900 (NSW) ss 33B(1)(a), 59(2), 86(2)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 10A, 12, 21A, 32Cases Cited: Atholwood v The Queen [1999] WASCA 256; 109 A Crim R 465.
Bugmy v The Queen [2013] HCA 37; 87 ALRJ 1022; 302 ALR 192.
Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145.
Cameron v The Queen [2002] HCA 6; 209 CLR 339; 76 ALRJ 382.Category: Sentence Parties: Regina (Crown)
Ricky Cordell (Offender)
Dean Petersen (Offender)Representation: Counsel:
D Patch (Crown)
B Eurell (Offender - Cordell)
S Molloy (Offender - Petersen)
File Number(s): DC 2011/00324583 (Cordell) DC 2011/00345678 (Petersen)
REMARKS ON SENTENCE
I am sentencing two men who were involved in a shocking home invasion back in 2011. I am sentencing one of the men for four crimes which he committed during the course of that home invasion. I am sentencing the other man for two crimes committed during the home invasion. The two crimes committed by the other man are the same two crimes involving the same victim as two of the crimes committed by the first man. The first man is named Dean Petersen and the second man's name is Ricky Cordell.
It is first appropriate to set out the crimes that I am sentencing these men for. Mr Petersen is the man who committed four crimes. Those four crimes are these. The first is assault occasioning actual bodily harm in company. The victim was Mr Sciberras. That is an offence against s 59(2) of the Crimes Act1900 (NSW). Parliament has fixed a maximum of 7 years to that crime. The second offence is another assault occasioning actual bodily harm in company. This time the victim was Mr Sciberras' partner, Ms Karakizos. Again that crime carries 7 years' imprisonment under s 59(2) of the Crimes Act. The third crime is called detain with intention to steal property in company. The victim of that crime was Ms Karakizos's daughter, Ms McMaster. That is an offence against s 86(2)(a) of the Crimes Act. Parliament regards that crime so seriously that it has fixed a maximum of 20 years' imprisonment to the offence. The last crime that I am sentencing Mr Petersen for is called use an offensive weapon with intention to commit an act of indecency. Again the victim was Ms McMaster. That offence is created by the Crimes Act, s 33B(1)(a). Parliament has fixed a maximum of 12 years' imprisonment to that offence.
When I am sentencing Dean Petersen for the last offence, he has asked me to take into account another offence, namely inciting the same victim, Ms McMaster, to commit an act of indecency towards Dean Petersen. Mr Petersen and the prosecutor have signed a form in accordance with s 32 of the Crimes (Sentencing Procedure) Act1999 (NSW) containing that request. I will take that crime into account when I am sentencing Mr Petersen for the last offence and I sign the form to that effect.
In two of the crimes committed by Mr Petersen, Ricky Cordell joined him. He was a co-offender. Those two crimes were the assault occasioning actual bodily harm in company against Ms Karakizos and the detention with intention to steal property in company committed against Ms McMaster. He was a co-offender in the sense of being engaged in a joint criminal enterprise with Mr Petersen. The offences committed by Mr Cordell are committed against the same provisions of the Crimes Act and carry the same maximum sentences.
Mr Petersen pleaded guilty to all of the offences that he was charged with. He pleaded guilty on 10 April 2013, some 9 months after he was committed for trial.
As was pointed out by Mr S Molloy of counsel who appeared for Mr Petersen, there were some negotiations about the charges that were placed on the indictment and those negotiations resulted in a reduction in the number of offences on the indictment and an agreement between him and the prosecution about what he would plead guilty to. As Mr Molloy pointed out, the negotiations resulted in him being charged with fewer offences than those that he originally faced. In fact, as Mr Molloy pointed out, there were five charges laid by the police in the first place that were eventually not proceeded with. Mr Molloy referred me to the High Court's approval of Ipps J's remarks in Atholwood v The Queen [1999] WASCA 256; 109 A Crim R 465, as stated in Cameron v The Queen [2002] HCA 6; 209 CLR 339; 76 ALRJ 382. I refer to [20 - 22] of the majority judgment in that case.
On the other hand Mr D Patch of counsel, who appeared as Crown Prosecutor, argued that the reduced number of charges was no more than a classic example of a plea bargain. He argued that Mr Petersen should receive no more than a 10% discount for his plea, whereas Mr Molloy argued that it should be closer to 15%.
I think there is some force in both submissions and I propose eventually to discount the sentences that Mr Petersen will receive by 12% because of the fact that he has pleaded guilty.
On the other hand, Mr Cordell went to trial on four charges and was found not guilty of two of the charges. I am sentencing Mr Cordell for the two offences that the jury found him guilty of on 24 February 2013. If I have not already done so, I formally convict Mr Cordell of the two offences that I am sentencing him for. Because there was no plea of guilty by Mr Cordell, he does not have the advantage of the discount which is offered to a person who has pleaded guilty to an offence.
A judge needs to make findings about what happened in the course of offences so that those findings can be the basis of the sentences which are imposed. In this case there is in exhibit SF an agreement between the prosecution and Mr Petersen about the facts that he was to plead guilty to. In Mr Cordell's case I will sentence him on the basis of the evidence in the trial, but I have a guide provided by Mr Patch as to the findings that I might make, contained in MFI 27.
Georgia Karakizos lived at Colyton, a suburb of Sydney. She lived there with her seven children. They were aged from 19 down to 1. She and her partner, Mr Sciberras, who was the father of four of the children, were in the family room. It was in fact a converted garage. It was late at night on 25 September 2011. The children had gone to bed. The children included Justin McMaster. He was the 19-year-old son of Ms Karakizos and lived in a granny flat with his partner. The children also included Kayla McMaster, who was then aged 17 and lived in the main part of the house.
It was after midnight when Paul Sciberras and Georgia Karakizos heard a bang on the garage door. Mr Sciberras went out to find out who was there. He said he saw three men in the backyard. The three men, it is agreed, were Dean Petersen, Ricky Cordell and a man named Chris Bailey. There was some conversation about obtaining drugs.
In the facts agreed between Mr Petersen and the prosecution, Ricky Cordell produced a chrome-coloured knife and pointed it at Mr Sciberras's throat and told him to get inside the garage. Mr Sciberras did not immediately comply and Dean Petersen punched him in the head four times and then there was a fight amongst the men. Ricky Cordell and Dean Petersen tried to drag Mr Sciberras into the garage. At one stage, according to the facts which are agreed in the Petersen case and which I find in that case, Mr Cordell lunged at Mr Sciberras with a knife and scratched him. Mr Sciberras broke free.
What I have just described are the findings which I make in respect of the assault occasioning actual bodily harm in company committed by Dean Petersen against Paul Sciberras. I make it clear that Mr Cordell has been found not guilty of any assault against Mr Sciberras.
Ms Karakizos obviously heard what was going on outside. She was inside, but her partner had not come back into the garage so she went out to look for him. Outside she was confronted by Dean Petersen and Ricky Cordell. One of them asked for money. She tried to get away to run to her neighbour's house for help, but Dean Petersen followed her and grabbed her by the hair. He started to drag her back towards the house. She was struck to her head by something metal by Dean Petersen. She was calling out for help.
I find those facts in respect of both men for the assault in company against Georgia Karakizos, but I add in respect of Ricky Cordell that there is evidence, which I accept, that he was standing some 1½ to 2 metres away. Indeed in exhibit S5 Ms Karakizos indicated that Mr Cordell had done no more than stand there and watch without touching her.
Kayla McMaster came out of the main part of the house. What she saw was her mother on the ground and Dean Petersen standing over her and kicking her. She asked Dean Petersen who he was and he said "give me your money". She said she did not know what he meant. At that point Dean Petersen commenced to commit the offence of detaining Kayla McMaster with intention to steal property in company. He grabbed her and put a knife to her throat. He then took her into the house. He took her through the house, back to the garage. He then walked her back into her mother's bedroom.
At that stage I am satisfied that Ricky Cordell was in that room. In other words, Mr Petersen's engagement in this offence commenced before Mr Ricky Cordell's offence. Like the assault occasioning actual bodily harm in company against Kayla McMaster's mother, Mr Petersen was the principal offender.
When they got into her mother's bedroom, Ricky Cordell was there looking for money. Dean Petersen demanded the money from her. She said she would have to go and look. Ricky Cordell said "just tell me where it is and then we'll just go." As Mr Patch pointed out, those words indicated that Mr Cordell was at that stage an active participant in the detention by making a demand on the victim.
While they were still in her mother's bedroom, Dean Petersen let Kayla McMaster go in order for her to look for money. At that point Mr Cordell found a jar of coins. Again, as Mr Patch pointed out, that indicated his active participation in the offence by being responsible for the location of some money, no doubt not what they were looking for, and its theft.
At this point Dean Petersen approached his victim, Kayla McMaster, with the knife again. Again he took control of her and made her go into her bedroom. He demanded a phone that he saw in that room. At that point Ms Karakizos' eldest child, Justin McMaster, came into the house. He saw some of what was going on and recognised Dean Petersen from around the neighbourhood. He said "Dean, what are you doing?" Dean Petersen denied that that was his name but, significantly, told Justin McMaster to go and find some money "or she's gone".
Justin McMaster went looking for some money, but came back reporting that he had found none. He went out to the front door and was confronted by Ricky Cordell, who ordered him back inside, at which stage he was holding a wheel brace, although that itself is not part of any offence committed in respect of Justin McMaster.
Again Dean Petersen forced Kayla McMaster on the move yet again. He took her out to the front of house and on to the veranda. He still had the knife. He walked her into the driveway. He started to threaten her. He called her a "bitch" and suggested that she suck his cock. He put a knife to her throat. She felt that she could not breathe. Although one of his co-offenders, not Ricky Cordell, told him to stop, he told him to shut up because she was coming with them. He then forced her to the ground. The actions which I have just described by Mr Petersen comprise the factual findings which I make against him for the offence of detain with intention to steal property in company. It will be seen that again Dean Petersen was the principal offender in that regard. Mr Cordell was a co-offender and a couple of times took an active part in the offending by making a demand on Ms McMaster and by taking the jar of coins.
I turn now to the fourth offence that Mr Petersen has pleaded guilty to. After he had forced Kayla McMaster to the ground, he sat on her legs. He then got off her and said "open your legs." He threatened her and told him to show him her "pussy." She refused. He repeated the demand holding the knife up to her face. Despite Kayla McMaster begging him, he kept the knife there until she opened her legs and moved her underpants to one side saying "there is that what you want?" At that point Mr Petersen put the knife to her inner thigh in an action correctly described by Mr Patch as "a very serious act of dominating sexual violence." Fortunately the police were heard to be coming at that stage and the men disappeared. As a result of the behaviour I have just described, Mr Petersen was charged with the offence of using an offensive weapon with intention to commit an act of indecency against Kayla McMaster.
The Crimes (Sentencing Procedure) Act 1999 is the Act of Parliament in New South Wales that deals with the sentencing of offenders. In s 21A(2) of that Act, Parliament has listed a number of "aggravating factors to be taken into account in determining the appropriate sentence for an offence." A number of those factors are present here. There are more factors present in respect of Mr Petersen. Mr Petersen was on parole at the time that he committed these offences. He was released on parole about a month earlier, having spent 2 years in prison for an armed robbery. Being on conditional liberty is a significant aggravating factor. The justice system allows people to be on bail, on good behaviour bonds and releases them early before their sentence expires from prison so that it can assist in their rehabilitation. Instead of getting on with his rehabilitation, Mr Petersen abused his liberty to commit these shocking crimes.
In addition, another aggravating factor is that the offence was committed in the home of the victims. Everyone is entitled to feel safe and secure in their own home. The peace being enjoyed by these victims in their home was shockingly violated that night.
Mr Petersen already had a criminal record. I have referred to the armed robbery that he committed. It occurred in 2009 and he received a 4 year gaol term. He was released on parole after 2 years on 18 August 2011 and, as I said, committed these offences just over a month later. His record includes a number of entries for offences dealt with in the Children's Court including offences of break and enter, assaulting police, stalking, destroying property and an escape.
Mr Molloy argued that the matters in the Children's Court should not be included amongst the aggravating factors because of s 14 of the Children (Criminal Proceedings) Act 1987 (NSW). I think there is some force in that submission because s 21A of the Crimes (Sentencing Procedure) Act describes the relevant aggravating factor as the offender having "a record of previous convictions." Section 14 of the Children (Criminal Proceedings) Act prescribes that in the case of "a child who has pleaded guilty to, or has been found guilty of, an offence" the Court shall not "in respect of any offence, proceed to, or record such a finding as, a conviction in relation to a child who is under the age of 16." Mr Molloy pointed out that his client turned 16 on 1 March 2007 so that I should not take into account as aggravating features any matters referred to in the Children's Court, dealt with by the Children's Court before then. I propose to accept his submission in that regard.
There nevertheless remains a common assault and a destroy property and an escape which occurred after he turned 16. Nevertheless I accept Mr Patch's submission that the armed robbery is a significant and relevant conviction. Section 21A(2)(d), which deals with previous convictions, says they are aggravating "particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences"
The fact that Mr Petersen had a knife when he was detaining Kayla McMaster is also an aggravating feature because it involved the actual use of a weapon. It is not an aggravating feature of the s 33B offence because that offence involves, as part of its definition, the use of a weapon. In respect of the detention though, Mr Patch argued, and I accept, that there are degrees of aggravation with the use of a weapon. This offence not only involved the presence but the use of a weapon to threaten the victim. The weapon was a knife which had a capacity so far as the victim was concerned to inflict very serious bodily injury or death. The use of the weapon was sustained and it was accompanied by threats to kill the victim.
So far as Mr Cordell is concerned, I take into account in respect of his sentences the fact that he committed these offences in the victims' home and, in respect of the detention offence, that at one stage he had a wheel brace. They are the only two statutory aggravating features relevant to Mr Cordell's case. The injuries to Ms Karakizos are apparent from photographs which are contained in the exhibits. The injury to Mr Sciberras which is relevant to Mr Petersen is shown in a photograph. There was some argument about whether or not Mr Cordell produced the knife first. I am here discussing Mr Petersen's case. I do not regard that issue as a significant one or one that needs resolution by me because once Mr Petersen obtained the knife, its use by him for a sustained period of time overwhelmed any significance of where he obtained it.
It is obvious, as Mr Patch helpfully acknowledged, that so far as the offending behaviour on that evening was concerned, Mr Petersen was by far the more serious offender. He was charged with and pleaded guilty to two additional offences. If I have not done so already, I take this opportunity to formally convict Mr Petersen of the four offences that I have referred to and I am sentencing him for. In respect of one of the offences, I must take into account an additional offence under s 32 of the Crimes (Sentencing Procedure) Act.
In respect of the two offences which are in common between the two offenders, Mr Patch acknowledged and I accept that the criminality of Mr Petersen is significantly greater. Although Mr Cordell participated in the detention actively, his actions were not nearly as serious as those of Mr Petersen who not only physically controlled the victim and moved her from place to place, but was armed with a knife and made the threats.
In respect of the offence against Ms Karakizos, Mr Cordell was part of the joint criminal enterprise and it was acknowledged by the victim that he was not actively engaged apart from his presence. Of course, as I have already said Mr Petersen was on parole and also had a previous conviction for an armed robbery.
Mr Patch fairly acknowledged that I can ignore Mr Cordell's criminal history and I accept that submission. It comprised offences in the Children's Court regarding property and trespass and a resist and in the Local Court for resisting arrest, bad language and property offences. For all of these offences he received good behaviour bonds.
It is important for a judge to set forth in the remarks accompanying a sentence what happened and how serious an example of the crimes were committed by the offenders. I have set out what happened and will turn later to the seriousness. It is also important for a judge to set out the personal circumstances and relevant information about the offender.
I turn to this now. Mr Petersen is now 22 but is about to turn 23 in about a week's time. He gave evidence in the proceedings and acknowledged that he had been drinking alcohol and taking amphetamines beforehand. Although he denied that he went with the knife or that he was aware a knife was being taken, I put little weight on those denials, not because I necessarily do not accept them but because of the sustained use that he made of the knife once he obtained it.
He is of Aboriginal background and has two daughters who are aged about six and about four. He was educated to year 10 and was working full-time before he went into custody. He has made very good use of the time he has had in custody and has undertaken a number of courses which are designed to assist in his rehabilitation. Mr Molloy tendered a number of certificates which became exhibit S8 which I have taken into account and which I accept demonstrate that Mr Petersen has applied himself in prison by undertaking the programs.
Mr Patch acknowledged that Mr Petersen's prospects of rehabilitation are reasonable. I cannot find that they are good because he committed these offences whilst he was on parole. One of the courses he did over eight months attending every day. He has support from his family who were visiting him in custody. He was brought up by his mother and his father did not appear in his life until he was about seven when he found out that his father was an alcoholic. His father died some 10 years later from an alcohol-related disease. He is the youngest of four children. He has also been working whilst he has been in prison. He expressed his sorrow about what he put the victims through and expressed that to her and her family. I take that reference to include all of the victims. His brother has work for him when he finishes in prison.
Mr Molloy called Mr Petersen's mother, Ms Golden, who confirmed that her other son would offer Dean Petersen some work. She has observed significant changes in Dean Petersen since he has been in prison and undertaking the courses. She noticed that he is "standing on his own two feet as in rehabilitating himself whilst in gaol and not just sitting there waiting for everybody else to help him". Mr Petersen also wrote a letter which became exhibit 7 expressing his remorse about what had occurred as well as expressing it in evidence.
Mr Cordell is the older of the two men. He is still 30 and turns 31 this year. What is significant about Mr Cordell's case is this. About four months after he was arrested he sought bail. He was given bail on condition that he attended the well-known and respected Odyssey House, the drug rehabilitation centre. Overall he spent just short of two years in Odyssey House. I have a lot of material from and about Odyssey House which was tendered in evidence by Mr B Eurell of counsel who appeared for Mr Cordell. I have also heard from one of the Odyssey House staff who was called by Mr Eurell to give evidence on behalf of his client. That witness was Mr Justin Walker who is still mentoring Mr Cordell. Mr Walker pointed out that Mr Cordell had reached level 4 which is a very advanced stage in Odyssey House, carrying a lot of responsibility. He described Mr Cordell as a "valued member of the community at Odyssey House" who is also demonstrating that he would be a valuable member of the community outside Odyssey House.
There are also reports from Odyssey House which describe Mr Cordell's progress through the various stages in very complimentary terms. He is obviously highly regarded as a successful participant in the very demanding program offered by Odyssey House. I should say in the context of Mr Cordell acknowledging his heavy dependency on illegal drugs and the impact which it had in his life, he has always had steady employment and a number of trade qualifications. His life was completely out of control because of drugs and alcohol when he committed these offences. I should also add that the Community Corrections Section of the Department of Corrective Services have provided some very helpful pre-sentence reports in Mr Cordell's case. As they say, he had a "long history of substance abuse but at the same time demonstrated a sound work ethic".
He had encountered considerable adversity in his life which included domestic violence when he was growing up. He had a history which included a significant learning disability which was disclosed at school. His drug abuse included alcohol, cannabis and amphetamines as well as heroin and methylamphetamines. It noted that he had clearly demonstrated a long-term serious commitment to his own rehabilitation and regarded him as a low to medium risk of re-offending.
Returning to Mr Walker's evidence I asked him about the impact that a full-time prison sentence may have on Mr Cordell. Mr Walker, whose experience in this regard I accept, expressed the opinion that if Mr Cordell "went back to gaol it would demolish any treatment or any issues that he has worked on or any progress that he has made as an individual up until this stage". He explained that the environment in prison does not encourage "the five pillars which we entrench as values in each resident in the program". He has seen other residents going back into prison and bases his opinion on that experience.
There are also a number of references which were tendered by Mr Eurell on behalf of his client, mostly from people linked to Odyssey House but also one from his mother. She described positively her son's adjustment to the Odyssey House program and his success in rehabilitating himself. She said that he is refocusing his life. He has a young son and his partner is pregnant at the moment anticipating another child. His mother has seen "major improvements" since he has been in Odyssey House as well as "his general well-being and health along with his attitude towards others".
I turn now to consider the sentences which I should impose on these two men for the crimes which they have committed.
I accept that the criminality of Mr Cordell is significantly lower than the criminality of Mr Petersen and I accept the other features of difference between the two offenders which I have already referred to. There is a significant feature of Mr Cordell's case which I need to refer to. Section 3A of the Crimes (Sentencing Procedure) Act lists the purposes of sentencing. One of the purposes is "to promote the rehabilitation of the offender". Other purposes of course include ensuring that the offender is adequately punished and deterring the offender and others, as well as protecting the community and making the offender accountable for their actions and denouncing the conduct and recognising the harm. Mr Patch very fairly pointed out that this is one of the occasionally rare and unusual cases where an offender has made extraordinary efforts in rehabilitating themselves. It demonstrates rehabilitation, in my opinion, of the highest order. Mr Cordell has, as Mr Patch acknowledged, taken control of and redirected his own life and his prospects of rehabilitation are very good. Mr Patch acknowledged that the significance of personal deterrence is less because of the progress of Mr Cordell's rehabilitation and that the interests of society are better served by encouraging his rehabilitation. The need to protect the community is also reduced.
Mr Eurell described his client's rehabilitation as spectacular and pointed out the very small number of persons who reach the final stages of the course at Odyssey House. Mr Eurell pointed out that this offending conduct was brought about by the abuse of illegal drugs and that his client has successfully dealt with that cause.
The two offences that I am sentencing Mr Cordell for are both serious. Obviously the offence of detaining Kayla McMaster with intention to steal in company is much more serious. In normal circumstances I would regard an appropriate sentence for that more serious offence as being 6 years imprisonment and an appropriate sentence for the other offence, the assault, as being 2 years imprisonment. But because of the extraordinarily encouraging personal features which I have referred to I would regard appropriate sentences as being 3 years for the detention and 1 year for the aggravated assault. I would have accumulated those two sentences by 6 months with the result that the overall sentence would have been 3½ years. However, Mr Cordell spent just over 4 months in full time custody before he was given bail. In addition he spent nearly 2 years in the strict environment of Odyssey House. Although he was at liberty on bail, he voluntarily subjected himself to the physical restrictions of that facility. The Court of Appeal regards that sort of environment as quasi custody. I propose to allow about 14 months of that 22 months as being equivalent to full time custody. Overall I would regard Mr Cordell as having served the equivalent of 1½ years in full time custody. Accordingly, the overall sentence which I will impose upon him is one of 2 years imprisonment. Because of the evidence given by Mr Walker about the effect of full time prison and the importance of continuing his rehabilitation in the community I will shortly order that that sentence be suspended.
I turn now to Mr Petersen's case. For reasons which I have already explained, his criminality is greater than Mr Cordell's. Mr Molloy also drew my attention, so far as his client was concerned, to the recent judgment of the High Court of Australia in Bugmy v The Queen [2013] HCA 37; 87 ALRJ 1022; 302 ALR 192. I regard Mr Petersen's early upbringing as being affected by the kinds of factors referred to in that judgment which can mitigate the sentence which would be otherwise appropriate for any offender. In this case as it happens Mr Petersen is indigenous and it is generally, and appropriately, accepted that these problems are particularly prevalent within indigenous communities. The sentences which I would otherwise impose upon Mr Petersen are mitigated because his moral culpability is likely to be less "than the culpability of an offender whose formative years have not been marred" in the way that Mr Petersen's were. I am quoting from [40] of the judgment of French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ in Bugmy. It is also the case, as the High Court pointed out at [43], that the "experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life."
Taking into account those factors and the rehabilitation which he has commenced in prison, but nevertheless the seriousness of the crimes which he has committed, I would regard appropriate sentences for the crimes which he committed as these: for the offence against Mr Sciberras, 3 years imprisonment; for the corresponding offence against Ms Karakizos, 3 years imprisonment; for the detention of Ms McMaster, 8 years imprisonment; for the use of the weapon to commit an act of indecency in respect of Ms McMaster, 5 years imprisonment. When one adds those up they come to a total of 19 years imprisonment. However if I were sentencing Mr Petersen individually for each crime I would direct that the sentences for the two crimes committed against Ms McMaster run partially concurrently so that the overall sentence would be 10 years. I would also direct that there be some concurrency between the two offences for the assaults so that they would be in effect 1½ years each. The result still comes to a total of 13 years imprisonment. Because Mr Petersen pleaded guilty I would reduce that term by 12% so that it would result in an overall prison sentence of 11 years imprisonment. At this stage I regard it as important to give particular weight to Dean Petersen's youth. As I said he is about to turn 23. He is still a very young man and I need to be wary of having a young man, such as he is, spend a very long time in prison. What I propose to do is to impose an overall sentence of 9 years imprisonment and to fix a non-parole period of 4½ years imprisonment.
Mr Petersen when he was arrested for this offence on 30 October 2011 went back into custody but, as I explained, he was on parole when he committed these offences so when he went back into custody he had to serve the balance of that parole. He did not finish serving that sentence until 21 September 2013. Mr Molloy argued and Mr Patch acknowledged that in accordance with what the Court of Criminal Appeal said in Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145, I may take into account the principle of totality and backdate the sentence somewhat that I am imposing rather than direct that it commence on 22 September 2013. I propose to backdate that sentence by 9 months so that it commences on 21 January 2013.
What I propose to do in respect of Mr Petersen is to impose an aggregate sentence of imprisonment in respect of the four offences that I am sentencing him for. As I said, I would have regarded appropriate sentences for the two McMaster offences as 8 years and 5 years and the two assaults as 3 years each. I would have directed some concurrency so that the overall result would be 13 years imprisonment but I would have reduced that to 11 years after a discount for pleading guilty. But because of his youth I would have imposed sentences with an overall effect of 9 years imprisonment.
HIS HONOUR: Mr Petersen, I am going to sentence you now if you would stand up, please.
I impose an aggregate sentence of 9 years imprisonment in respect of the offences that you have committed. The non-parole period will be 4½ years. The sentence will commence on 21 January 2013. The overall sentence of 9 years will therefore expire on 20 January 2022. The non-parole period of 4½ years commenced on 1 January 2013. It therefore expires on 20 July 2017. The first date on which you will be eligible for release on parole is 20 July 2017. The balance of your sentence of 4½ years is from 21 July 2017 to 20 January 2022. You have a seat, Mr Petersen.
There is one other matter I have to deal with regarding Mr Petersen and that is this. There was evidence given by Mr Petersen that he was interested in the violent offenders program at Parklea but that there needed to be a recommendation from a judge for him to undertake it. I recommend to the Commissioner of Corrective Services that, if he considers it appropriate, Mr Petersen be allowed to undertake the violent offenders program at Parklea.
In respect of Mr Cordell I have indicated that the sentence I would have imposed in respect of the detention was 3 years imprisonment and the sentence that I would have imposed in respect of the assault was 1 year imprisonment and that I would have accumulated them or rather I would have directed that they be served concurrently to the extent of 3½ years imprisonment. I would have taken into account in effect 1½ years for pre-sentence custody therefore resulting in an effective sentence of 2 years imprisonment. I propose to impose an aggregate sentence in respect of those two offences.
HIS HONOUR: Mr Cordell, if you would stand up.
In respect of the two offences that you have committed I impose an aggregate sentence of 2 years imprisonment. Under s 12 of the Crimes (Sentencing Procedure) Act1999 I make an order suspending the execution of the whole of the sentence for the whole of the period. I direct that you be released from custody on condition that you enter into a good behaviour bond for the period of 2 years. The conditions of your good behaviour bond are that you accept supervision from the Community Corrections Section of the Corrective Services Department and accept all reasonable recommendations and directions from an officer of that office, particularly regarding issues of companions and drug and alcohol problems. Have a seat, Mr Cordell.
HIS HONOUR: Ms Papanis, Mr Cole, Ms Fard, first are there any matters of law or fact that might be dealt with under s 43 Crimes (Sentencing Procedure) Act, errors or misdescriptions or things like that, anyone?
PAPANIS: Not necessarily a s 43 matter but one that would exercise the power under I think it's 167 of the Criminal Procedure Act. Mr Cordell when he was arrested a small amount of marijuana on his person. I hand up a s 166 certificate, I've given my friend a copy of that as a related offence. Given your Honour's approach to sentence and Mr Cordell's progress with the Odyssey House program I wouldn't make any submission on it except to recommend that that be dealt with with the matters that your Honour has just sentenced him on. I do have the fact sheet if that assists but it only goes so far as to say that when Mr Cordell was arrested he had a small amount of marijuana on him.
HIS HONOUR: So what do you want me to do? What is it, s 166 of the Criminal Procedure Act?
PAPANIS: I believe it's 167, your Honour, I don't have the law in front of me at the moment I'm afraid.
HIS HONOUR: Is this a backup charge or related?
PAPANIS: It's a related offence. I have the police facts sheets relating to if it would assist and a charge--
HIS HONOUR: Not yet. What do you suggest I do?
PAPANIS: It would be within your discretion to have it incorporated into the suspended sentence if your Honour were minded that way or to my friend may wish to seek a--
HIS HONOUR: No, I'm going to give him a s 10A. It really pales into insignificance.
PAPANIS: I meant to indicate for there to be no heavy penalty on that one.
HIS HONOUR: Say that again?
PAPANIS: I meant to indicate to your Honour to not deal with it in any heavy way. It was just a matter that had come up and given that it's a small drug offence and there were the drug issues that he's addressed.
HIS HONOUR: In respect of the related offence of you don't need to be heard on that.
PAPANIS: I don't want to be heard.
HIS HONOUR: Which is the subject of MFI 28 possessing a prohibited drug.
Under s 10A of the Crimes (Sentencing Procedure) Act1999, I convict Mr Cordell and dispose of the proceedings without imposing any other penalty.
COLE: I have one other matter.
FARD: I don't have anything to add.
HIS HONOUR: Any other conditions so far as your client is concerned? Probation and Parole, Odyssey House says that he should, it just says that after care programme based in a geographical area.
FARD: My client is happy with those conditions.
HIS HONOUR: Do you or Ms Papanis think that I need to do anything more?
PAPANIS: Not so much a matter relating to the s 12 but I notice on the last occasion there was still the two addresses that were indicated in his bail variation so unless I understand he's now living in Jamisontown so I just wanted to maybe see if he's still living at that address.
HIS HONOUR: Are you still at Jamisontown?
OFFENDER CORDELL: Yes.
The conditions are the one I have already directed to accept directions and recommendations. The second condition is that he notify the Registrar of this Court of any change in his residential address. The third condition is that he attend Court if he receives a notice to do so.
HIS HONOUR: Anything else in respect of Mr Cordell?
Mr Cordell, you have heard what I have had to say. You need to go with Ms Fard to the Registry to sign the bond. Ms Fard will explain to you this. A s 12 bond, a suspended sentence. You have got a suspended sentence. So you have to understand that you have got a 2 year gaol sentence but I have suspended it but it is still hanging there. Normally if you get a good behaviour bond and you breach it by doing something wrong you come back before the Court and a judge or magistrate might say that is fair enough, just go back and keep trying but with a suspended sentence it is different. It is quite different. If you get into trouble and you come back, the law about suspended sentences makes it very hard for the judge not to send you to gaol. So if you get into trouble again for anything and you come back before me or you mess up on your supervision and you come back before me my hands are tied. It is really important, Ms Fard will explain it to you again, that you understand that. Otherwise you have spent the last 2 years getting on with your life and not only that but really turning yourself around. I congratulate you. Keep up the good work. Just wait until Ms Fard accompanies you to the Registry.
HIS HONOUR: Mr Cole, Ms Papanis, the sentence in respect of Mr Petersen. Any submissions or any corrections?
PAPANIS: No.
COLE: In relation to Mr Petersen, your Honour made a recommendation in terms to Corrective Services in terms of him being allowed to undertake a certain course.
HIS HONOUR: I did. It was based on his evidence.
COLE: I understand that there may be a criterion that if you get more than 3 years fulltime gaol you cannot do that course but I would ask this, would your Honour be prepared to direct that a transcript even if just that portion of the recommendation that your Honour makes be taken out and attached--
HIS HONOUR: Of my sentence? They get it anyway. They ask for it anyway. It goes to Corrective Services.
COLE: I just make sure because sometimes Corrective Services can be a very slow moving - I meant no criticism
HIS HONOUR: When a sentence is over 3 years they ask for a transcript so that the remarks on sentence will go to Corrective Services. Mr Petersen, for reasons that I have explained your sentence is significantly higher but I have also discounted it a lot for the reasons that I explained and in the end a lot because of how young you are. You are still a young man but you did some dreadful things that night as did Ricky Cordell but you were even worse. So you have ended up with a 9 year gaol term. I could have commenced it in September last year but I have backdated it to January, given you 9 months when you were serving both, your balance of parole and this sentence so you have a 9 month start. You are in gaol until 20 July 2017. You are eligible for parole. You know the drill there. I cannot direct parole. It is up to the Parole Authority. They assess you and give you parole but that is when you are first eligible, 20 July 2017. You have got about 3 years and a few months to go. You also made a very good start on your rehabilitation. You have good support from your family and let them keep supporting you and get on with those courses so that when you get out eventually you can resume a life which hopefully which will not be affected in the ways that it has. Your sentence finally expires on 20 January 2022. Do you understand all of that?
OFFENDER PETERSEN: Yes.
HIS HONOUR: Good luck. Is there anything else I need to do? I don't think there's anything I need to send, no, into custody with Mr Petersen so far as exhibits usually psychiatric or psychological material. There's none of that. Anything else?
COLE: Not for Mr Petersen.
FARD: We are going to the Registry. I am taking the client--
HIS HONOUR: Thank you. That's important and if you would explain to Mr Cordell again about the s 12 bond I'd be grateful and if you'd accompany him to the Registry so he could be signed up.
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Decision last updated: 27 June 2014
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